People v. Gomez
| Decision Date | 18 March 1974 |
| Docket Number | Nos. 25556,25593,s. 25556 |
| Citation | 519 P.2d 1191,184 Colo. 319 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee. v. Richard GOMEZ and Jose Gilberto Trujillo, Defendants-Appellants. |
| Court | Colorado Supreme Court |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Tennyson W. Grebenar, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Kenneth J. Russell, Thomas M. Van Cleave III, Deputy State Public Defender, Denver, for defendants-appellants.
After a trial before a jury defendant Gomez was found guilty of rape and defendant Trujillo was found guilty of rape and assault with intent to commit rape. We affirm the rape convictions and reverse the assault with intent to commit rape conviction.
The testimony in this case was in conflict. The victim testified through an interpreter that she was 78 years of age; that on May 27, 1971, the two defendants and a third person broke into her home; that defendant Trujillo grabbed her arms while defendant Gomez put his hand over her mouth and disrobed her; that Trujillo then carried her to her bedroom where he climbed on her bed and used her '(l)ike men generally do with a woman'; that the victim allowed Trujillo to so use her because she was an invalid and unable to defend herself; that Trujillo stayed there until 3:00 o'clock a.m.; and that she did not tell anyone of the incident until the following morning because she did not want to disturb anyone at such an early hour.
Her testimony that she was rather badly bruised and that her arm was bleeding was corroborated.
Defendant Trujillo testified that on prior occasions he had had sexual intercourse with the victim; that on the night in question she voluntarily let him into her house; that the two then had an argument concerning whether or not he was in a state of intoxication; that at one point he grabbed her arm, but the argument was quickly settled; and that subsequently, with her consent, the two engaged in sexual intercourse.
Defendant Gomez denied ever being inside the victim's house.
Defendant Trujillo argues that the victim's assertion that she had been raped is too incredulous to constitute proof beyond a reasonable doubt. While in her interpreted testimony she did not say expressly that there was sexual intercourse, it was undisputed that intercourse occurred as Trujillo himself so testified. The testimony of the victim and Trujillo differed as to whether the intercourse was consensual. The evidence was sufficient to sustain Trujillo's rape conviction. It is a function of the jury to resolve conflicts in the evidence and to assess the credibility of witnesses; and we, as a reviewing court, do not substitute our judgment for that of the jury. People v. McCormick, Colo., 508 P.2d 1270 (1973).
It is undisputed that defendant Gomez left the victim's house prior to the act of intercourse between defendant Trujillo and the victim. Because of this fact Gomez argues that he could not be convicted of rape on the basis of being an accessory to the rape. We disagree. An accessory is defined as one 'who stands by and aids, abets or assists, or who, Not being present, aiding, abetting or assisting, Has advised and encouraged the perpetration of the crime.' (Emphasis added.) C.R.S.1963, 40--1--12. The italicized portion of the statute specifically includes the situation where, as here, the accessory is not physically present but has advised and encouraged the perpetration of the crime. The victim testified that Gomez had disrobed her. From this testimony the jury could have reasonably concluded that Gomez 'advised and encouraged' the rape.
Mrs. Celia Herrera, the victim's granddaughter, testified that on the morning following the rape her grandmother had told her that she had been raped. The defendants argue that this testimony was inadmissible hearsay evidence.
The law in Colorado is clear that
"(i)n criminal trials for rape . . . it may be shown by the testimony of the prosecuting witness, or that of other witnesses, that the prosecutrix made complaint of the outrage Soon after its commission, for the purpose of corroborating the testimony of the prosecutrix." LaBlanc v. People, 161 Colo. 274, 421 P.2d 474 (1966) (Emphasis added.)
The defendants contend that the granddaughter's testimony does not fall within this rule because the victim's complaint was not made until the morning after the rape. In De Salvo v. People, 98 Colo. 368, 56 P.2d 28 (1936), nearly an identical situation existed in that the victim failed to complain to her family or the police until the morning following the rape. De Salvo held that this complaint to a police officer constituted a 'recent complaint within the meaning of the law' and that the officer's corroborative testimony was thus admissible. Following De Salvo, we hold that the granddaughter's testimony was...
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Matter of J.W.Y.
...the assault by partially disrobing her and holding her legs, the necessary elements were established. Accord, People v. Gomez, 184 Colo. 319, 519 P.2d 1191, 1193 (1974) (en banc). Appellant's remaining contentions arise from his efforts to undermine such testimony by attempting to establish......
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Banek v. Thomas
...one at times, but it is a distinction that our case law has recognized and applied in various contexts. See, e.g., People v. Gomez, 184 Colo. 319, 519 P.2d 1191 (1974) (recent complaint of sexual offense admissible not to prove truth of matter asserted in complaint but as corroborative evid......
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People v. Saars
... ... Gomez, 184 Colo. 319, 519 P.2d 1191 (1974). The trial court, having observed first-hand the effect of the quoted remark on the jurors, concluded that it was not sufficiently prejudicial to require a mistrial ... Moreover, since there was no defense objection when the contested ... ...
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People v. Fierro
...about a sexual assault, made soon after its occurrence, can constitute corroboration of the victim's testimony. People v. Gomez, 184 Colo. 319, 519 P.2d 1191 (1974). In this case, the victim's younger sister testified that the victim made such a complaint on the day immediately following th......